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Seton Hall UniversityeRepository @ Seton Hall
Law School Student Scholarship Seton Hall Law
2012
Knockout: Concussed Players Sending the NFLDown For the CountDavid ChaiseSeton Hall Law
Follow this and additional works at: https://scholarship.shu.edu/student_scholarship
Part of the Entertainment, Arts, and Sports Law Commons, and the Torts Commons
Recommended CitationChaise, David, "Knockout: Concussed Players Sending the NFL Down For the Count" (2012). Law School Student Scholarship. 93.https://scholarship.shu.edu/student_scholarship/93
KNOCKOUT: CONCUSSED PLAYERS SENDING THE
NFL DOWN FOR THE COUNT
David Chaise
I. INTRODUCTION
The purpose of this paper is to examine the current concussion litigation surrounding the
National Football League (NFL) and its retired players. This article will focus on the legal claims
that the retired players can assert, rather than the moral obligation that the NFL may have failed
to provide. First, the retired players must establish that a duty existed for the NFL to protect its
players against long-term health effects from head injuries suffered during NFL games,
independent of the collective bargaining agreement. Secondly, the retired players wish to prove
that the NFL concealed facts and scientific data from its players to continue their participation in
professional football games. Further, the retired players assert that the NFL and its teams
conspired to reject scientific findings that show long-term effects of concussions.
To begin, this paper briefly reviews medical evidence of long-term effects from brain
injuries. Specifically, this article will chronicle the history and science of chronic traumatic
encephalopathy (CTE). It will then provide a quick overview of the present individual actions.
After appreciating the scientific evidence, the article will focus on the litigation and the
causes of action. In particular, the causes of actions most common among the retired players
include negligence, negligent misrepresentation, fraud, fraudulent concealment, and conspiracy
to defraud. Then, the relief sought, which includes medical monitoring, loss of consortium, and
declaratory relief, will be scrutinized to consider whether such requested relief is appropriate.
Following the litigation discussion, the paper will shift to a more legislative discussion.
Concussions and their long-term effects are not exclusive to football. Other sports leagues face
Chaise 1
similar issues, and their responses will be presented. In addition, the article will discuss current
legislation and possible future legislation related to preventing long-term effects from brain
injuries.
This article continues with an analysis of solutions for preventing concussions and other
sports related brain injuries. Through litigation, legislation, and advocacy, the paper seeks to find
viable solutions for an expanding problem. However, a solution for past injuries is difficult to
attain.
Lastly, the article explains the effects that would result if the retired players succeed in
their litigation. This conclusion expresses a pessimistic outcome. Ultimately, it will evaluate the
economic impact of successful litigation, and conclude that unlike other professional sports
leagues, the NFL would cease to exist if the retirees win. Through years of denying the long-term
effects of head injuries, the NFL had pinned itself into a corner of massive potential liability. The
NFL may be able to implement procedures to protect its present and future players; however,
similar to the former players, the NFL cannot fix its past. The current litigation will leave the
NFL with a persistent headache that it may never be able to alleviate completely, and ultimately,
might knockout the NFL from existence.
II. SPORTS RELATED BRAIN INJURIES AND THEIR LONG-TERM EFFECTS
A. Brain Injury Terminology
A concussion is a closed head injury1 induced by traumatic biomechanical forces leading
to “a complex pathophysiological process affecting the brain.”2 In addition, a concussion
“occur[s] when different levels of the brain tissue are compressed together, forced to slide and
shear across each other, or are torn apart.”3 Further, a concussion shortly impairs neurological
functions that spontaneously resolve themselves, rather than affecting anatomical structure.4
Chaise 2
Although a single concussion does not affect the anatomical brain structure, repetitive
concussions have more serious effects than merely a short-lived neurological functional
impairment. First, second-impact syndrome occurs when a person sustains a second concussion
before the symptoms of his last concussion have ceased.5 Almost all persons who experience
second-impact syndrome become disabled, and the mortality rate is an alarming 50%.6 Secondly,
multiple concussions may cause long-term effects, such as Chronic Traumatic Encephalopathy
(CTE). Common to athletes and others whom have suffered multiple concussions, CTE is a
progressive degenerative disease of the brain.7 Symptoms of CTE include concentration and
memory problems, which may escalate to various forms of dementia, including Alzheimer’s
disease and Parkinson’s disease.8 Additionally, mental health issues, such as depression, may
develop from CTE.9
B. A History of Brain Injury in Sport
Beginning in the 1920s, medical experts started to research the effects of brain injuries
related to sports. In 1928, Dr. Harrison Martland, a pathologist and Essex County, New Jersey
Chief Medical Examiner, discovered that former boxers exhibited similar symptoms to patients
with brain damaging illnesses, including epidemic encephalitis, or the inflammation of the
brain.10
Although Martland’s article on the “punch-drunk” boxer could not be substantiated at the
time, other physicians followed his research. From the 1930s until 1973, medical experts
proposed that punches caused the brain to bounce inside the skull, destroying tissue and leading
to irreversible scar tissue.11
However, some neurologists disagreed, finding that only 1 out of
3,800 knocked out boxers who later underwent an electroencephalography (EEG) test
demonstrated significant brain-wave changes.12
These neurologists concluded that a knockout
punch produced temporary unconsciousness, but no long-term health effects.13
However, once
Chaise 3
technology improved, medical experts understood that an EEG could not test for structural
changes in the brain.14
In the 1980s, X-ray computed tomography (CT scans) and magnetic
resonance imaging (MRI) would help support this understanding, and provide better exams for
brain traumas.15
Notably, in 1973, British researchers published pathology reports of deceased boxers
from 1900 to 1940. The posthumous examinations revealed that the boxers suffered severe brain
injuries. Family members’ descriptions of the boxers’ lives and habits conveyed speech
difficulties, memory loss, and tremors, which are commonly associated with Parkinsonism.16
For
example, Muhammad Ali’s physician found that his Parkinsonism was due to 22 years of head
injuries from boxing.17
However, the 1973 study noted that preventing brain damage in living
boxers remained difficult because it could not differentiate whether the damage resulted from an
accumulation of blows or merely from a single fatal trauma.18
After international attention arose
from deaths in boxing, the American Medical Association called for a ban on boxing because of
its dangers.19
C. Brain Injury Studies Relating to Football: A Chronology
A major factor in the current NFL concussion litigation is when the NFL had the requisite
knowledge to protect its players from CTE and other long-term effects related to brain trauma
experienced on the football field. In 1997, the American Academy of Neurology (AAN) issued
guidelines to prevent structural brain injuries, second impact syndrome, and cumulative brain
injuries from repeated trauma.20
The purpose of the guidelines was to help teams manage
concussions that occurred during a practice or a game.21
According to the AAN’s
recommendations, only a player who suffered a grade two or grade three concussion should not
return to the game, and was required to wait at least one week before playing again; however, a
Chaise 4
player who sustained a grade one concussion could return to the field that same day.22
The AAN
distinguished between a grade one and grade two concussion by specifying signs and symptoms,
explaining that a player should not return if symptoms lasted more than fifteen minutes and he
had not lost consciousness.23
However, the Prague Concussion Guidelines, first issued in 2004
and updated in 2005, recommended that any player who sustained a concussion, even grade one,
should not return to play that same day.24
Although the AAN and Prague Concussion Guidelines were promulgated based on prior
medical knowledge in concussion treatment, independent studies specific to football began to
develop. In 2002, Dr. Bennet Omalu, a forensic neuropathologist, studied the brain of Mike
Webster, a former Pittsburgh Steeler and Hall of Fame center who died from a myocardial
infarction.25
Webster exhibited depression, diminished cognitive abilities, and signs of dementia
in life, and a postmortem examination revealed that Webster suffered from CTE.26
Additionally,
in 2004, Dr. Omalu diagnosed Terry Long with CTE after finding “neurofibrillary tangles and
neutrophil threads in all regions of [his] brain.”27
Long, a former Steelers offensive lineman who
committed suicide, had exhibited major depression.28
Further, Dr. Omalu found neurofibrillary
tangles and “a brain that resembled an 80-year-old man” in former Pittsburgh Steelers offensive
lineman Justin Strzelczyk.29
The thirty-six year old Strzelczyk was never documented with a
concussion during his eight-year NFL career, but Dr. Omalu remains confident that Strzelczyk
suffered repetitive head injuries.30
In 2007, Dr. Omalu found “tau-positive neurofibrillary tangles”
associated with Alzheimer’s and other types of dementia in the brain of Andre Waters. Waters, a
former Philadelphia Eagles defensive back known for his hard hits, committed suicide at age
forty-four in 2006.31
In 2010, Dr. Omalu and Dr. Julian E. Bailes continued their research at the
Brain Injury Research Institute, and diagnosed Chris Henry with CTE, who died either from
Chaise 5
falling or jumping off of a moving truck.32
Most alarmingly, Henry was an active player for the
Cincinnati Bengals at the time of his death in 2009. The wide-receiver was never diagnosed with
a concussion, and suffered many off-the-field issues.33
In 2005, the University of North Carolina at Chapel Hill (UNC) conducted a survey of
3,683 retired football players about their overall health.34
Over 2,500 players returned the
questionnaire, for a 70% response rate.35
The average retired player was fifty-four years old and
played professional football for approximately 6.6 years.36
More than 1,500 players (60.8% of
the respondents) reported that they had at least one concussion during their career, and half of
those lost consciousness from a concussion. Additionally, almost 600 players (24%) suffered
from at least three concussions.37
Further, 266 retired players (17.6%) “perceived the[ir] injury to
have had a permanent effect on their thinking and memory skills as they have gotten older,”
showing “a relationship between diagnosed mild cognitive impairment and history of
concussions.”38
Therefore, the study concluded, “a history of recurrent concussions and probably
subconcussive contacts to the head may be risk factors for the expression of late-life memory
impairment, mild cognitive impairment and earlier expression of Alzheimer’s.”39
In addition, the UNC study showed that retired NFL players faced a 37% higher risk of
Alzheimer’s than other males of the same age.40
Of the 758 players who were over fifty years old,
thirty-three retirees were already diagnosed with Alzheimer’s.41
However, because the study was
based on self-reported answers, the study could not independently verify the players’ medical
problems with exact accuracy. Thus, the NFL’s Committee on Mild Traumatic Brain Injury
rejected the study as unreliable.42
However, the NFL acted reluctantly to implement concussion safety measures, declaring
many studies unreliable. In 2005, the NFL’s Committee on Mild Traumatic Brain Injury stated
Chaise 6
that it did not believe players who sustained a concussion faced a significant risk of sustaining a
second injury if they returned to play.43
Additionally, in 2007, the Committee rejected guidelines
from the AAN or the Prague Commission, stating that the recommendations were based on
opinion, not science.44
In 1994, the NFL formed the Committee on Mild Traumatic Brain Injury (MTBI) “to
initiate research and advise the NFL and NFL clubs on best practices for concussion prevention
and management, as well as for avoidance or protection against other head, neck and spine
injuries.”45
Its successor is named the NFL Head, Neck and Spine Committee.46
Dr. Elliot
Pellman, a rheumatologist and paid physician and trainer for the New York Jets, chaired the
MTBI Committee from 1994 until 2007.47
The other chairmen were Dr. Ira Casson, a neurologist,
and Dr. David Viano.48
As of 2007, the MTBI Committee repeatedly denied a link between concussions and long-
term problems, such as dementia or depression through its own studies conducted from 1996 to
2001.49
However, in 2009, the NFL commissioned a study involving 1,063 retired football
players at the Institute for Social Research of the University Michigan.50
The simple question
asked was whether the player had “ever been diagnosed with dementia, Alzheimer’s disease or
other memory-related disease.”51
Two-percent (2%) of retired players between thirty and forty-
nine responded positively, which is “19 times the rate for the same age group in the general
population.”52
Additionally, six percent (6%) of retired players above fifty responded
affirmatively, which is five times higher than the general population.53
Despite the study’s results,
the study’s authors found that it did not prove a causal link between playing football and long-
term mental functions because it failed to consider other risk factors, such as genetic
predisposition.54
Additionally, the NFL asserted that the study, which it funded, was unreliable.55
Chaise 7
Thus, the Committee and the NFL concluded that more research was necessary to determine a
causal link.
Following the release of the NFL sponsored study, in the fall of 2009, the United States
House Judiciary Committee held a hearing, which included Congressmen, NFL executives, NFL
players, NFL doctors, and NFL retirees to discuss the alarming discrepancy between the rate of
former NFL players suffering memory-related disorders and that of the general population.
Despite outrage from the Judiciary Committee Members, NFL Commissioner Roger Goodell
refused to accept “a direct link between playing football and brain disorders.”56
However, after Congress, and thus the public, began to take notice of the concussion issue,
Commissioner Goodell issued a memorandum to all thirty-two teams that stated a player should
not return to play if he sustained a concussion and exhibited serious symptoms, “such as the
inability to remember assignments, and persistent dizziness or headaches.”57
In addition, the
NFL announced that not only would it “support research by its most vocal critics, but also
conceded publicly for the first time that concussions can have lasting consequences.”58
Further,
the NFL MTBI’s co-chairmen, Dr. Ira Casson and Dr. David Viano, resigned.59
They were
replaced by Dr. H. Hunt Batjer and Dr. Richard G. Ellenbogen, who have both revealed their
support that repeated head injuries cause long-term effects though with unknown frequency.60
Further, the NFL has given independence to Dr. Batjer, Chairman of the Department of
Neurology at Northwestern University Feinberg School of Medicine, and Dr. Ellenbogen,
Chairman of the Department of Neurological Surgery at the University of Washington, in
appointing other members to the Head, Neck and Spine Committee.61
Recently, the Committee’s
independence was displayed with a memorandum reasserting the “Sideline Concussion
Assessment Protocol,” establishing the “Madden Rule” that warrants a medical escort for any
Chaise 8
player diagnosed on the sideline with a concussion, and firmly stating “When in Doubt Leave
Them Out.”62
III. THE LITIGATION: RETIRED PLAYERS v. NFL
As of April 24, 2012, sixty-five separate suits have been filed, with over 1,500 plaintiffs
involved.63
The plaintiffs include retired players, as well as, family members of deceased retired
players. The complaints filed vary in regards to form: as a class action; a mass tort lawsuit; or as
individual plaintiffs. For example, in Easterling v. Nat’l Football League, the complaint
proposes seven distinct classes for players of different eras, where one plaintiff represents each
class.64
Under the Federal Rules of Civil Procedure, a class action permits the representative
plaintiffs to represent other unnamed plaintiffs.65
However, a court must first certify the class
adhering to certain guidelines.66
In contrast, mass tort litigation joins together several plaintiffs’
claims into one single action.67
Lastly, a few former players filed as single plaintiffs.68
However,
in common with the plaintiffs are the claims, which include negligence, negligent
misrepresentation, fraud, fraudulent concealment, and conspiracy to defraud. Additionally, the
plaintiffs request medical monitoring, allege loss of consortium, and seek declaratory relief. As a
threshold matter, the plaintiffs must first demonstrate that federal law does not preempt their
state law claims.
A. Federal Preemption of Labor Agreements: Section 301 of the Labor Management
Relations Act (LMRA)
Before analyzing the plaintiffs’ legal claims, it is important to understand Section 301 of
LMRA. The statute states:
Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting commerce as
defined in this chapter, or between any such labor organizations, may be
brought in any district court of the United States having jurisdiction of the
Chaise 9
parties, without respect to the amount in controversy or without regard to
the citizenship of the parties.69
The Supreme Court has reasoned that federal preemption of labor contracts is necessary in order
to resolve labor-contract disputes, including interpretation of contractual phrases and terms,
uniformly and predictably.70
Additionally, section 301 preemption “is so powerful as to displace
entirely any state cause of action” for violation of a collective bargaining agreement.71
Further,
section 301 preempts not only contract claims, but also tort claims relating to a collective
bargaining agreement.72
Despite federal preemption of labor contract and tort claims, according to the Sixth
Circuit, a state-law tort claim may be sufficiently “independent” to survive section 301
preemption.73
First, the court must determine whether the plaintiff’s claim was created by the
collective bargaining agreement or by state law.74
If the collective bargaining agreement created
the right, then the section 301 preempts the plaintiff’s claim.75
However, if the collective
bargaining agreement did not create the right, then the court examines whether proving the state
law tort claim requires an interpretation of the collective bargaining agreement.76
The claim will
be independent only if the state law claim does not substantially depend on analyzing the terms
of the collective bargaining agreement.77
In addition, membership in the bargaining unit does not alter the analysis of whether
section 301 preempts state law claims. Despite retired players’ absence from the bargaining unit,
the NFLPA and the NFL can choose to negotiate benefits for retirees.78
Thus, although the
NFLPA does not have a continued obligation to bargain on behalf of the retirees, under section
301, the retirees can enforce provisions in the CBA that provide them with retirement benefits.79
Chaise 10
1. Cases Where Preemption Was Found
The preeminent case for section 301 preemption is United Steel Workers of America,
AFL-CIO-CLC v. Rawson.80
In Rawson, surviving family members of ninety-one miners who
died in a fire brought a wrongful death suit for breach of contract, negligent inspection, and fraud
under Idaho state law.81
The Supreme Court of the United States held that the duty to inspect the
mine arose out of the collective bargaining agreement; therefore, section 301 preempted the
survivors’ claims.82
In the instant case, the NFL claims that section 301 completely preempts the plaintiffs’
claims.83
The NFL relies on Stringer v. Nat’l Football League.84
In Stringer, former Minnesota
Vikings offensive linemen Corey Stringer died after consecutive days suffering heat stroke
during summer training camp.85
Stringer’s widow filed a negligence claim against the NFL for
failing to minimize the risk of heat stroke, to establish regulations, and to monitor heat-related
illness.86
The Southern District of Ohio found that although Stringer’s negligence claim did not
arise directly from the CBA, the claim was preempted because it was substantially dependent
upon analyzing the CBA’s provisions imposing duties for medical treatment of its players.87
Despite the NFL’s “Hot Weather Guidelines” contained in the NFL’s 1991 Game Operations
Manual, which was effective at the time of Stringer’s death, the Stringer court found that the
CBA did not incorporate the Manual; thus, it excluded an express or implied provision imposing
a duty on the NFL from protecting players from heat-related illness.88
Nevertheless, the widow’s
claim was “inextricably intertwined and substantially dependent” upon an analysis of CBA
provisions when read with the Game Manual.89
For example, the court found that the CBA’s
requirement for “full-time head trainers and assistant trainers be certified by the National
Athletic Trainers Association” may have increased the significance of the NFL’s Hot Weather
Chaise 11
Guidelines if the trainers’ association had not instructed its members about heat training.90
In
addition, the CBA required the team physician to warn a player with a physical condition that
would be “significantly aggravated by continued performance.”91
Because the court found the
physician’s medical training would comprehend that continued performance would aggravate
heat-related illness, the CBA’s contractual provision was inextricably intertwined with the
widow’s wrongful death claim.92
Additionally, the Northern District of New York held that section 301 preempted former
Indianapolis Colts tight-end Timothy Sherwin’s claims for breach of contract, negligence,
medical malpractice, fraud, negligent misrepresentation, and negligent and intentional infliction
of emotional distress.93
Sherwin alleged that the Colts failed to provide adequate care, and that
the team intentionally withheld information regarding his neck injury.94
Specifically, Sherwin
continued to practice despite numbness and tingling because the physicians refused to discuss his
injury with him.95
After being traded, Sherwin’s new team discovered he had a herniated disc in
his spine that required surgery.96
The Northern District of New York highlighted two provisions
of the CBA, which had expired, but the parties continued to abide by its terms.97
First, the
Sherwin court noted that when
Player is injured in the performance of his services under this contract and
promptly reports such injury to the Club physician or trainer, then Player
will receive such medical and hospital care during the term of this contract
as the Club physician may deem necessary […].98
Secondly, the Northern District of New York found that the CBA contained a clause
for player injuries:
If a Club physician advises a coach or other club representative of a
player’s physical condition which could adversely affect the player’s
performance or health, the physician will also advise the player […].99
Chaise 12
Thus, the court concluded that Sherwin’s causes of actions were “substantially dependent” upon
analyzing the CBA; therefore, the claims were causes of action under section 301 that were
subject to arbitration.100
Further, in Givens v. Tennessee Football, Inc., former Titans wide receiver David Givens
claimed that the team exhibited the state law torts of “outrageous conduct,” negligent infliction
of emotional or physical injury, and breach of contract because it withheld information regarding
his knee injury.101
Similar to Sherwin discussed above, the Middle District of Tennessee
concluded that because the CBA’s clause requiring a physician to advise a player of his
condition when the physician advises the team, his claims were not sufficiently independent from
the CBA’s terms.102
Thus, the court dismissed Givens’s suit because section 301 preempted his
claims.
2. Cases That Were Not Preempted
Although §301 preempted Stringer’s wrongful death claim against NFL, the District
Court for the Southern District of Ohio held that a state law claim existed against the NFL,
Riddell, and NFL Properties, which licensed the Riddell equipment, for defective design.103
Stringer’s widow claimed that the helmet and shoulder pads prevented “evaporation and heat
dissipation.”104
The Stringer court found that although the CBA created a “Joint Committee on
Player Safety and Welfare” to discuss aspects of playing equipment, the NFL was not a member
of the committee and did not need to adopt the committee’s recommendations.105
Thus, because
the CBA did not impose a duty on either the NFL or NFL Properties to ensure that the equipment
protected from risk of heat-related illness, the duty must have arose from common law.106
Additionally, when a referee negligently threw a penalty flag, striking and seriously
injuring Cleveland Brown offensive tackle Orlando Brown’s eye, the Southern District of New
Chaise 13
York found that a court would not need to interpret any terms of the CBA to adjudicate Brown’s
negligence claims.107
The court reasoned that because the NFL owed a duty to the general public
to “use due care in throwing small weighted objects,” the negligence could have harmed even an
innocent bystander, which established a duty independent of the CBA.”108
Further, the Ninth Circuit Court of Appeals held that former San Diego cornerback John
Hendy’s claims for negligent hiring and negligent and intentional withholding of medical
information against the team and its physician were not preempted under section 301.109
Although the CBA required each team to hire a board certified orthopedic surgeon, Hendy, who
was dismissed from the Chargers after reinjuring his knee, did not allege that the team failed to
hire an orthopedic surgeon.110
Rather, the player’s claim was grounded in California’s duty of
care when hiring, which was independent of any duty in the CBA.111
In addition, the CBA
included provisions that required the physician to inform the player of his medical condition
when the physician advised the team of the player’s condition, as well as, giving the player the
right to review his medical records twice per year.112
Despite these provisions in the CBA, the
Ninth Circuit found that intentional and negligent withholding of medical information was not
preempted because state law imposed an independent duty of informed consent.113
Further,
similar to Brown, which determined that the player’s status was irrelevant to determine the
referee’s duty, the Hendy court acknowledged that the claim did not depend on Hendy’s status as
a player under the Players Association, but instead, “[t]he identical claim could be asserted by
anyone Dr. Losse treated in connection with his employment.”114
3. The Practical Effect of Preempting State Law Causes of Action Under Section 301
Practically, preempting state law causes of actions has a profound effect on the
administration of a legal case. Although LMRA section 301, quoted above, compels sole federal
Chaise 14
jurisdiction of disputes under a collective bargaining agreement, Congress intended to encourage
parties to agree to arbitration.115
As stated in LMRA section 203(d), “Final adjustment by a
method agreed upon by the parties is hereby declared to be the desirable method for settlement of
grievance disputes arising over the application or interpretation of an existing [CBA].”116
Therefore, if a court finds that section 301 preempts a claim, and the parties had agreed to
include a provision for grievance arbitration, only the agreed upon forum can be used to interpret
the CBA.117
Here, the CBA at issue contains an arbitration provision that directs
any dispute…arising after the execution of this Agreement and involving
the interpretation of, application of, or compliance with, any provision of
this Agreement, the NFL Player Contract, or any applicable provision of
the NFL Constitution and Bylaws pertaining to terms and conditions of
employment of NFL players, will be resolved exclusively in accordance
with the [arbitration] procedure set forth in this Article except wherever
another method of dispute resolution is set forth elsewhere in this
Agreement, and except wherever the Settlement Agreement provides that
the Special Master, Impartial Arbitrator, the Federal District Court or the
Accountants shall resolve a dispute.118
Thus, if a district court finds section 301 preemption, the claims will be arbitrated rather than
litigated in court.
4. Applying LMRA Section 301 Preemption to NFL Concussion Litigation
The above cases establish an effective framework to apply section 301 to the current NFL
Concussion Litigation. A District Court would likely find that the retired players’ claims are
substantially dependent on interpreting the CBA, and thus, section 301 would preempt state law
causes of action. For the players to avoid section 301 preemption, they must state a claim that
does not rely upon the CBA or an interpretation of the CBA’s language. Even if the language is
not expressly stated in the CBA, the CBA will preempt the claim if it is inextricably intertwined.
Chaise 15
Thus, the players’ and their families’ claims depend on defective equipment, a general duty to
others, negligent hiring, or intentional withholding of medical information.
Most importantly, the CBAs have changed over time, but every CBA has addressed
player health and safety. Addressing medical care, the 1969 NFL bylaws provided an ambulance
available to both teams,119
the bylaws in 1980 stated that the Club’s medical staff determined the
recovery time for players’ injuries,120
the 1993 CBA provided that an injured player who
promptly reported injury would receive medical care as the Club physician deemed necessary,121
and the CBAs provided for certified orthopedic surgeons122
and trainers.123
Additionally,
beginning from the 1982 CBA, players had the express right to obtain a second medical opinion
paid for by the Club.124
Further, player safety provisions had been in place since 1970, where the
CBA established a Joint Committee on Player Safety and Welfare to discuss equipment, surfaces,
facilities, rules, and player-coach relationships125
Additionally, the CBAs empowered the
Commissioner to refer playing rule changes affecting player safety to the committee.126
Under
the 1982 CBA, the NFLPA could investigate and request an arbitration hearing related to
adopting playing rule changes that would adversely affect player safety.127
In addition, the CBAs
have provided for various benefits, including injury grievances,128
termination pay,129
workers’
compensation,130
severance pay,131
supplemental disability benefits,132
providing hearings before
a benefits arbitrator,133
injury protection benefits,134
and the newly established “88 Plan” that
provides medical benefits to former players with dementia.135
Here, the retired players allege that the NFL has “consistently adopted and exercised a
duty to protect the health and safety of its players by implementing rules, policies, and
regulations,” thus confirming its duty to protect players from risk.136
Thus, while attempting to
stress that the NFL breached this duty by various failures in protection, the plaintiffs undermine
Chaise 16
their argument to avoid arbitration. Because the retired players admit that the CBA, bylaws, and
other rules establish a duty, an interpretation of the CBAs would be necessary. Therefore, section
301 should preempt claims that involve establishing duty, such as negligence and negligent
misrepresentation, which will be discussed in section III(B)(1) and (2). Similarly, the fraud and
fraudulent concealment claims, as analyzed in section III(B)(3) and (4), require a duty for the
NFL to disclose truthful information. Thus, LMRA section 301 would almost certainly preempt
these claims, as well, placing them in the sole discretion of an arbitrator as agreed to in the CBA.
B. State Law Causes of Action
Most likely, the section 301 will preempt state law causes of action; thus, the retired
players would have to settle their claims in arbitration. However, if the court does not find
preemption, it will have to decide upon the state law causes of action. Although players have
filed concussion lawsuits in many jurisdictions, the U.S. Judicial Panel on Multidistrict
Litigation granted the NFL’s motion to consolidate the cases.137
Thus, the litigation will
generally concentrate in the Eastern District of Pennsylvania.138
In the alternative to trial, an
arbitrator would be required to consider many elements present in the causes of action analyzed
below.
1. Negligence
To state a cause of action for negligence, a plaintiff must establish:
(1) a legal duty to conform to a standard of conduct raised by the law for
the protection of others against unreasonable risks of harm; (2) a breach of
this standard; (3) a legally attributable causal connection between the
conduct and the resulting injury; and (4) some loss or damage flowing to
the plaintiff’s legally protected interest as a result of the alleged duty.139
Here, the NFL players assert that the NFL had a duty of reasonable care: to protect
players on the field; to educate players, trainers, physicians, and coaches about CTE and
Chaise 17
concussion injury; to direct strict “return-to-play” guidelines to prevent CTE; to promote a
“whistleblower” system where teammates would bring to the attention of the coaching staff of
another player’s concussion; to design rules to eliminate concussion risk during games and
practices, to promote research to find a cure for CTE and other long-term concussive effects; and
to provide guidance to local sports organizations.140
Additionally, the retired players claim that
the NFL breached its duties by failing to perform the following: to institute “acclimation
requirements or procedures;” to regulate and monitor practices, games, equipment and medical
care “so as to minimize the long term risks associated with concussive brain injuries suffered by
the NFL players;” to require composing brain injury histories for each NFL player; to accurately
diagnose and record concussions in order to adequately and timely treat players; to “establish
league-wide guidelines, policies, and procedures regarding the identification and treatment of
concussive brain injury;” to develop medical criteria for players who can return to play; to
license and approve the best equipment available to reduce concussion risks; and to provide
complete information to NFL athletic trainers about concussion prevention, symptoms, and
treatment.141
Further, the 1970 and CBA provided that the Commissioner would resolve all
grievances under the CBA,142
and the CBAs from 1982 until 2006 provided for arbitration as the
forum for resolving disputes under the CBA, the NFL Player Contract, or the NFL Constitution
and Bylaws.143
The past collective bargaining agreements contained numerous provisions dealing with
player health and safety. The NFL’s Memo to Dismiss the Complaint conveys examples from the
CBAs regarding medical care provisions, player safety provisions, and grievance procedures.144
In addition, although the 1982 CBA expired in 1987, and a new CBA was not reached until 1993,
players and teams still operated under the 1982 CBA.145
As noted in section III(A)(1), the 1982
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CBA continued to govern disputes between the parties; therefore, the retirees could not avoid
labor preemption based on an interval between CBAs. Thus, labor law would likely preempt the
negligence claim.
Although many plaintiffs are involved in class action lawsuits against the NFL, a court
would likely find a class action lawsuit inappropriate because each retired player’s injuries
originated from different events. In addition, the players suffer from various levels of pain. Thus,
on the merits, the NFL would assert different defenses for different plaintiffs. First, the retirees’
negligence claim would have to verify that the NFL owed various duties to protect its players.
This should be an easy element for the plaintiffs to prove because of the natural duties that flow
from an employer-employee relationship.
Secondly, the former players and their spouses would have to establish breaches of the
NFL’s various duties. A court or arbitrator would be required to determine the available
technology at the time each plaintiff played, as well as, the CBA that controlled each individual’s
career. For example, medical technology used to diagnose brain trauma includes the CT scanner
and the MRI, which were both merely in the developmental stages during the mid-1970s and
were not widely used until the 1980s.146
Thus, players who played prior to 1980 would face
adversity in finding that the NFL breached a duty to them.
In addition, the retirees would be required to establish that the NFL’s breach of its
various duties proximately caused their present injuries, including CTE. The NFL would offer a
strong defense for this issue. Presumably, each player plaintiff has a unique injury history that
includes not only an individual’s professional career, but also his amateur career in high school,
middle school, and as far back as elementary school. For example, current Pittsburgh Steelers
safety Troy Polamalu, who is not party in the NFL Concussion Litigation, sustained two
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concussions in high school, three in college, and three in the NFL.147
Thus, a majority of a
football player’s concussions may have derived from pre-NFL games. Additionally, concussion
histories, especially for players who played prior to the concussion awareness era, would likely
exclude a number of undiagnosed concussions. Ironically, although technology improvements
and concussion awareness are usually viewed beneficially, the later players’ claims may be
weakened as a result. Therefore, for earlier players, the NFL could assert that it did not know of
concussions’ effects, and for later players, the NFL could use societal advancements to deny
responsibility for players entering the professional ranks with concussions.
Further, the NFL could argue that it was not its own negligence that proximately caused
players’ injuries, but rather illegal actions outside the scope of the CBA, which may qualify as
intentional torts.148
Recently, the NFL discovered that at least one team created a “bounty”
system among its players and coaches to offer bonuses to players that injured specified opposing
players.149
Incentivizing players with extra compensation has precedent. In 1989, the NFL
inquired into an alleged bounty system involving the Philadelphia Eagles.150
Although the NFL
ultimately concluded that no evidence existed, the prospect of illegal bounty systems could be a
potential obstacle for recovery. Possibly, however, the bounty programs could enable the retirees
to raise a state law claim of negligent supervision for the NFL’s failure to monitor its member
Clubs.
Lastly, the players will need to show that they have sustained concrete injuries. Assuming
each plaintiff has symptoms of an injury, such as memory loss or loss of motor functions, this
element of their negligence claim should be unproblematic. In fact, the players should rely
heavily on this element. Many of the plaintiffs were once childhood heroes, but are presently
heartbreaking casualties of a game that they treasured. A jury or an arbitrator will exhibit
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sympathy for these former perceived courageous warriors. For example, on April 19, 2012,
former Atlanta Falcons safety Ray Easterling, the initial plaintiff in the NFL Concussion
Litigation, committed suicide after years of depression, insomnia, and dementia.151
In addition,
the element of a proven injury may be relevant for retirement benefits under the CBA. Mike
Webster, the Hall of Fame Pittsburgh Steelers center examined posthumously by Dr. Cantu,152
filed for unemployment benefits in 1999 to compensate for brain damage resulting from football
head injuries.153
The Retirement Board granted Webster benefits, but only as a “Football
Degenerative.”154
However, the court found that the Retirement Board ignored unanimous
medical evidence that diagnosed Webster with permanent mental disability occurring before his
retirement.155
Thus, Webster was entitled to the more lucrative benefits under the “Active
Football” plan, rather than the “Football Degenerative” plan.156
Because each plaintiff
experienced different injuries that are presently exhibited by diverse symptoms, a court or
arbitrator must scrutinize each retired player’s injuries separately. Ultimately, although the
players might not succeed, they could demonstrate that they were permanently mentally disabled
at the time of their retirement, thus entitling them to greater retirement benefits.
Furthermore, although the retired players may not be able to avoid section 301
preemption against the NFL, their claims against the equipment makers, most notably Riddell,
would likely attain judicial review. Similar to Stringer, where the court found that the defective
equipment claim was not a subject of the CBA, discussed in section III(A)(1), a court may permit
a trial discussing the equipment. However, it would be difficult for a court on the merits to find
that the helmets did not adequately protect the players from concussions and their effects. Most
helmet manufacturers have developed equipment with standard technology, voluntarily
complying with the National Operating Committee on Standards for Athletic Equipment
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(NOCSAE), a nonprofit corporation.157
It is currently impossible to guarantee that a helmet could
prevent every concussion.158
However, researchers at Virginia Tech have promulgated helmet
rankings in its “National Impact Database.”159
Although the NFL does not mandate a particular
type of helmet, which could either harm or aid the players’ chances of recovery, the most
commonly worn helmet received a very low concussion prevention rating.160
The highest rated
helmets can lower the risk of a concussion by one-third.161
On one hand, the players have access
to these studies, but continue to choose a poor concussion prevention quality helmet. On the
other hand, when the litigation is heard on the merits, the arbitrator or court might find that the
CBA contained enough provisions for the NFL to mandate the safest helmet.
2. Negligent Misrepresentation
Negligent misrepresentation provides another state-law cause of action. A plaintiff may
establish negligent misrepresentation by showing, (1) the defendant negligently supplied false
information to foreseeable persons, whether known or unknown; (2) a foreseeable person
reasonably relied upon that false information; and (3) the person’s reliance proximately resulted
in economic injury.162
Additionally, because an element of negligent misrepresentation entails
proof that defendant NFL negligently supplied plaintiffs with false information about
concussions, the cause of action encompasses a claim of negligence. Therefore, negligent
misrepresentation requires the retired players to first show that the NFL owed them a duty of
care.163
Here, the former players and their families allege that the NFL provided the players with
misleading information regarding the long-term risks associated with returning to the playing
field. The misleading information was formed through the MTBI Committee, public statements,
and publications, as well as, criticisms of scientific studies, including its own commissioned
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study at the University of Michigan.164
Additionally, the plaintiffs claim that the NFL
misrepresented and concealed facts with the intent that the players would rely on it.165
However, proving reliance will be challenging because of football’s macho-man
culture.166
In 2008, then-Arizona Cardinals wide-receiver Anquan Boldin suffered a Grade III
concussion after New York Jets safety Eric Smith inflicted a helmet-to-helmet hit, which
required jaw reconstruction with seven titanium plates and screws.167
Boldin only missed two
games. Two-years later, Mike Tirico, Jon Gruden, a former Super Bowl winning football coach,
and Ron Jaworski, a former NFL quarterback, announced the New York Jets v. Baltimore
Ravens “Monday Night Football” game. On air, the commentators had the following exchange:
Gruden: The last time Boldin played here…He took one of the great hits of
all time, and here he is. He looks like it never happened.
Jaworski: He took that hit, and he played a couple weeks later. It was one of
the most incredible recoveries you'll ever want to see. You think of a tough
guy, that's an NFL tough guy, Anquan Boldin.
Tirico: It was a very scary scene…but [Smith] and Boldin spoke right after
and Boldin told him, "Keep playing that way. That was a freak accident."168
Although this game occurred in 2010, when long-term effects from concussions were widely
known, the announcers, including a former coach and player, focused on Boldin’s “toughness,”
Smith’s (illegal) “great hit,” and Boldin’s encouragement to “keep playing that way.” However,
the announcers neglected to discuss the possibility of long-term neurological damage.169
Further,
present day players, such as Detroit Lions center Dominic Raiola, know that “when you sign up
for this job, you know what you are getting into.” Raiola added, “I know I’m going to have my
day when something is going to happen…Memory loss is going to come. I am ready for it. It’s
worth it; totally worth it. This is the best job in the world and I wouldn’t trade it for anything.”170
Although other players may not share Raiola’s view,171
it creates some doubt as to whether a
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player’s actual knowledge of the effects would have changed his decision to play in the NFL.
Thus, the foreseeable plaintiffs, the former NFL players, would have to demonstrate that they
would have strayed from the tough persona portrayed by other former and current players,
coaches, and media. Otherwise, it would not be the misrepresentation that proximately resulted
in their injuries, but rather believed machismo.
3. Fraud
Fraud is a common law claim, specific to each state, but all states require similar
elements. In Jurevicius v. Cleveland Browns Football Company, the Northern District of Ohio
stated that a plaintiff must assert:
(a) a representation or, where there is a duty to disclose, concealment of a
fact,
(b) which is material to the transaction at hand,
(c) made falsely, with knowledge of its falsity, or with such utter
disregard and recklessness as to whether it is true or false that
knowledge may be inferred,
(d) with the intent of misleading another into relying upon it,
(e) justifiable reliance upon representation or concealment, and
(f) a resulting injury proximately cause by the reliance172
In Jurevicius, the plaintiff was a Cleveland Browns wide receiver who contracted a
staphylococcus (“staph”) infection at the Browns’ Training Facility.173
Jurevicius claimed that
the Browns owned and operated the facility, misrepresented safety precautions to prevent staph
infection, and the team failed to advise him of the team’s inadequate procedures.174
The court
found that the NFL’s duty did not arise from or require interpretation of the CBA because the
failure of duty to warn about risk of infection stemmed from a common law duty imposed by
“any professional to any person acting in justifiable reliance on that professional.”175
In addition,
the Northern District of Ohio explained that when a confidential relationship exists, such as one
between doctor and patient, a constructive fraud claim may arise for “a breach of a legal or
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equitable duty, which, irrespective of moral guilt of the fraud feasor, the law declares fraudulent,
because of its tendency to deceive others, to violate public or private confidence, or to injure
public interests.”176
However, because the CBA imposed a duty on the Browns’ physician to
advise the player if the physician advises the team about the player’s condition, as well as if a
“condition could be significantly aggravated by continued performance,” but was unclear
whether it imposed a duty for the physician to warn the player about the training camp’s
conditions, the court held that section 301 preempted the constructive fraud cause of action since
a determination of the CBA would be required.177
In the instant case, an analysis of the CBA would be required to determine whether the
section 301 would preempt the fraud claim of action. Although fraud requires a duty that would
likely preempt the claims, the players would likely fail on the merits. The retirees rely upon the
MBTI’s creation in 1994 and continual rejection of connecting long-term neurological effects
with multiple concussions until 2010.178
They assert that the Committee’s research, published
papers, public statements, and rejection of outside studies, as discussed in section II(C),
amounted to not only misrepresentations of concussions’ effect, but also knowingly false
statements. According to the plaintiffs, the NFL’s goal was to induce players to continue to play
for the NFL’s profit at the expense of the players’ health. Thus, the retirees seek to establish an
argument reminiscent of cigarette manufacturers that created Tobacco Industry Research
Committee, which suppressed and falsified information on the harm and addictiveness of
cigarettes.179
However, the players will face the most difficulty in proving reliance. The players may
have relied upon the NFL’s MBTI Committee, but their total reliance on the NFL’s research
might not have been reasonable. For example, the players could have relied upon the available
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studies on boxing, discussed in section II(B), to find that former boxers experienced speech
difficulties, memory loss, and tremors, as well as, severe neurological damage that was revealed
during posthumous examinations of boxers, a study conducted as early as 1973. Additionally,
while the NFL permitted players to return to play after sustaining a concussion, independent
guidelines advised against the practice beginning in 1997. Further, since 1983, the CBAs have
provided players with the opportunity to seek a second medical opinion.180
In addition, during
the 2000s, the players had access to the same information than the NFL. A player who continued
to play after 2002 would struggle to claim fraud because of Dr. Omalu and Dr. Bailes
postmortem reports of former players, as well as, the 2005 UNC research and the NFL’s
commissioned study in 2009. These studies indicate a very strong correlation, if not a causation,
that multiple concussions from football playing lead to long-term neurological effects, such as
CTE.
Lastly, the NFL players’ litigation differs from the Big Tobacco situation. The retirees
collectively bargained for their rights as employees; however, the cigarette consumers were mere
purchasers of a purposefully deceptive product. Furthermore, unlike the misled smokers in the
mid-twentieth century, the players can obtain extraordinary access to scientific information
through the Internet and other media sources.
4. Fraudulent Concealment
The elements of fraudulent concealment include (1) defendant concealed a material fact;
(2) the defendant knew the fact would be material to the plaintiffs; (3) the defendant had a duty
to disclose the material fact; (4) the defendant intended to mislead the plaintiffs; (5) the plaintiffs
justifiably relied upon the defendant’s provided information; and (6) the plaintiffs were injured
as a result of the defendant’s concealment.181
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Here, the retired players allege that the NFL concealed scientific facts that showed long-
term harm from concussions.182
Additionally, the retirees assert that the NFL’s concealment, in
the form of utilizing the MBTI Committee and advising its member teams on injuries, gave rise
to a duty that the NFL should be liable for injury.183
Further, the plaintiffs claim that the NFL’s
concealment proximately caused harm to the players and their families.184
Similar to the analysis for fraud in section III(B)(4), the fraudulent concealment will
likely result in arbitration. Whereas fraud relies more upon a misrepresentation, fraudulent
concealment focuses more on the aspect of hiding information. Thus, unless the retired plaintiffs
could prove that the NFL had performed research, the NFL’s study led to unfavorable results,
and the NFL concealed the study, a court or arbitrator should find the same holdings for both the
retired players’ action for fraud and fraudulent concealment. Although the NFL rejected its own
commissioned University of Michigan study, it did not conceal the results, but merely declared
that the study was unreliable.
5. Civil Conspiracy to Defraud
To prove conspiracy to defraud, the plaintiffs must show that two or more people agreed
to perform an unlawful act.185
A fact, “such as meetings, conferences, telephone calls or joint
signatures on relevant forms,” or facts inferring “conspiratorial conduct” must be pled for an
action based on conspiracy to defraud.186
Additionally, some states require malice as an essential
element of conspiracy, where the purpose of the conspiracy was to injure the plaintiffs.187
Further,
jurisdictions typically preface liability under civil conspiracy to defraud on the performance of
an underlying intentional tort.188
Here, the retired players and their spouses allege that the NFL deliberately conspired with
its teams and independent contractors to reject a causal connection between concussions and
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long-term mental health symptoms.189
The stated goal was to persuade players to return to
football regardless of trauma that could result.190
The retirees stated that the other objectives
included “prevent[ing] persons bargaining on behalf of players to have sufficient knowledge to
demand “that policies, procedures, and conditions be included in the [CBAs]”191
and “to deprive
players of their right to seek damages for concussion-related injuries in court by using the
[CBAs] as a purported future bar to any civil court action by players.”192
Common among the
plaintiffs’ claims is that the NFL used the MBTI Committee to cover up and refute other
scientific data from unbiased sources.193
If a court prefaces the retirees’ civil conspiracy to defraud claim upon an underlying tort,
then the claim would most likely be dismissed because of LMRA preemption. Notwithstanding
this threshold matter, civil conspiracy to defraud will be difficult to support. First, the plaintiffs
merely allege a conspiracy without offering factual support to show a joint agreement between
the NFL and its teams, such as meetings, documents, or conferences.194
However, team owner
meetings do exist; thus, it is possible that discovery of meeting minutes could produce a
concealed conspiracy. Additionally, if a district court requires malice, then retirees will have to
prove that the purpose of the conspiracy was to injure them. It may be difficult to prove that the
NFL had a purpose to injure its own players. More likely, assuming that the NFL and its member
Clubs concealed data showing long-term effects from head injuries, did so in order to profit from
aggressive plays. The NFL could argue that it would never have the intention to injure players
because keeping players on the field is more competitive, which yields to greater profits. Thus,
the NFL and Clubs’ profit-seeking goal remained, and injured players were a byproduct of this
intention. In spite of this, the retired players would generally have to prove an underlying tort,
which section 301 would likely preempt. Therefore, a court would not issue a decision based on
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civil conspiracy to defraud until an arbitrator found negligence, negligent misrepresentation,
fraud, or fraudulent concealment.
6. Negligent Hiring, Retention, and Supervision
On April 16, 2012, four former players and their spouses filed another NFL concussion
lawsuit in a Georgia state court.195
For the first time, retired players alleged the action of
negligent hiring, retention, and supervision.196
The retirees alleged that the NFL’s hiring,
retention, and supervision of the MBTI Committee members fell short of its duty of reasonable
care to hire medically qualified and unbiased physician committee members.197
For the former
players to succeed in their negligent hiring claim, they must prove the elements of a negligence
action, which includes an existence of duty, breach of that duty, and an injury proximately
caused by the breach.198
However, the plaintiffs would once again face the issue of section 301
preemption because negligent hiring is a state law claim.199
In Hendy, discussed previously in
section III(A)(2), the Ninth Circuit found that the CBA had no impact on the negligent hiring
claim. Hendy did not assert that the team failed to hire a board-certified physician, which was a
duty contained in the CBA; rather, Hendy alleged that the team failed to use due care when it
hired and retained the physician, claiming the doctor did not have the requisite knowledge and
skill to treat the plaintiff’s condition.200
Here, the retired players will likely overcome the LMRA barrier on their negligent hiring
state law claim because of the claim’s similarity to Hendy. However, the current litigation
presents an even better situation to overcome preemption. The retirees do not allege that the
teams failed to hire board-certified physicians; rather, they assert the league itself did not find
appropriate members for its MBTI Committee. In fact, the CBAs do not expressly cover the
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MBTI Committee. Thus, the negligent hiring claim will possibly defeat preemption if the MBTI
Committee is not inextricably intertwined with the CBAs.
On the merits, the retired players have a chance to succeed on this claim. First, the
plaintiffs will attempt to question the credentials of the former MBTI chairmen. Dr. Casson,
practices neurology, and was named a U.S. News Top Doctor.201
However, Dr. Pellman practices
and teaches rheumatology and orthopedics, which are fields that normally analyze joints and
bone structure.202
In addition, Dr. Viano researches biomechanics and impact injuries.203
A court
could possibly find that the NFL, an organization with abundance in wealth, influence, and
prestige, failed to hire the most qualified experts to issue reports about the destruction of brain
tissue. For comparison, the current chairmen of the NFL Head, Neck and Spine Committee are
both heads of medical school neurology departments.204
Additionally, a court could find that Dr. Pellman’s role as both the MBTI Committee co-
chairman and the New York Jets physician, discussed in section II(C), presented a conflict of
interest detrimental to the NFL’s players. For example, on November 2, 2003, the Jets played the
New York Giants. After Jets’ wide-receiver Wayne Chrebet fell unconscious in the third-quarter,
Dr. Pellman had the following exchange with Chrebet in the fourth quarter:
Pellman: There’s going to be some controversy about you going back to
play…This is very important for you, this is very important for your
career…Are you Okay?
Chrebet: I’m fine.205
Ten days after the game, the Jets and Pellman placed Chrebet on injured reserve, diagnosing him
with postconcussion syndrome.206
Chrebet said, “It was stupid, trying to get back out there.
That’s just me trying to convince them and myself that everything is all right.”207
However,
Pellman maintained that permitting Chrebet to return was based on his scientific evaluation, and
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his prognosis would not have been different retrospectively.208
After sustaining another
concussion in 2005, the sixth concussion in his NFL career, the Jets placed Chrebet on injured
reserve, and Chrebet retired after the season.209
Currently, the former wide-receiver still
experiences headaches, other concussive effects, and concern for his long-term health.210
Therefore, a court could find that Pellman, when evaluating players during games and analyzing
concussions’ long-term effects, was presented with a conflict of interest. He might have
overlooked his duty of loyalty to the player in order to prove his findings correct. Alternatively,
Pellman’s decisions on the field, and personal connections to NFL players, might have
influenced his research.
7. Medical Monitoring
Although medical monitoring is a damages claim, it is also a form of relief. The
jurisdictions that recognize the claim of medical monitoring require a plaintiff to show that he
was
(1) exposed at greater than background levels; (2) to a proven hazardous
substance; (3) caused by the defendant’s tortious conduct; (4) the plaintiff
faces an elevated risk of contracting a serious latent disease as a proximate
result of the exposure; (5) a monitoring procedure exists that makes early
detection possible; (6) the monitoring program is different than the
program normally prescribed in the absence of exposure; and (7) the
monitoring program is reasonably necessary according to contemporary
scientific principles.211
Additionally, only thirteen states, as well as the District of Columbia and Guam, permit a
medical monitoring claim in the absence of a present physical injury.212
Here, the retired players allege that “[a]s a result of the NFL’s misconduct” they have
been “exposed to a greater than normal risk of brain injury following a return to contact play too
soon after suffering an initial concussion, thereby subjecting them to a proven increased risk of
developing the adverse symptoms and conditions [of further adverse neurological
Chaise 31
symptoms].”213
The plaintiffs request “baseline exams and diagnostic exams which will assist in
diagnosing the adverse health effects associated with concussions.”214
However, as the NFL
notes, the medical monitoring claim will likely fail because a concussion is not a “proven
hazardous substance.”215
Courts have reserved medical monitoring claims to persons exposed to
toxic and industrial chemicals that invaded their bodies.216
7. Loss of Consortium
Loss of consortium compensates an uninjured spouse for the loss of “love,
companionship, affection, society, sexual relations, solace,” and support or services.217
However,
an uninjured spouse’s loss of consortium claim derives from the injured spouse’s underlying tort
claims.218
When an injured party cannot recover damages because claims arose under section 301
of LMRA, the spouse may not recover.219
Therefore, in Sherwin, discussed in section III(A)(1),
the court stayed the loss of consortium claim pending the result of arbitration.
In the present NFL Concussion Litigation, many spouses have claimed loss of consortium,
or deprivation of services, resulting from the NFL’s negligence.220
Additionally, the spouses
state that they will be required to pay for medical and household care for the treatment of their
husbands.221
However, these claims are derivative of the underlying negligence, negligent
misrepresentation, fraud, and fraudulent concealment claims. Therefore, similar to Sherwin, the
spouses will not be able to recover in court, but rather must await the results of arbitration
proceedings.
8. Declaratory Relief
The Federal Declaratory Judgment Act permits, but does not require,222
a court to
“declare the rights and other legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought.”223
Additionally, once the court grants the
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rights of the interested party, the declaration takes the effect of a final judgment.224
However,
declaratory judgment should be avoided when public issues are presented without critical
scrutiny of facts,225
including using caution where the ruling sought would reach far beyond the
particular case.226
Further, where a state’s public policy favored arbitration, the court stayed
declaratory judgment until the arbitration proceeding, as required by the contract between the
two parties, was conducted.227
Here, the retired players ask the court to declare that the NFL knew or reasonably should
have known about the effects of repeated traumatic brain injuries, including CTE, Alzheimer’s,
and Parkinson’s disease.228
Additionally, the plaintiffs seek declaratory judgments that the NFL
had a duty to advise the retirees about the medical risks, the NFL willfully and intentionally
concealed medical risks, and the NFL recklessly endangered the plaintiffs by misleading them
about the risks.229
However, a court will decide cautiously whether to grant declaratory relief
because the relief sought centers on issues that are material facts to the present litigation.
Additionally, declaratory relief would affect not only the NFL Concussion Litigation, but also
any litigation in which the employees are subject to injuries where only some evidence existed at
the time of their employment. Finally, the CBA favors arbitration. Thus, a court would likely
refuse to grant the requested declaratory relief, finding the issues more appropriate for arbitration,
or to be decided by a jury if LMRA section 301 does not preempt the claims.
IV. COMPARING THE NFL TO OTHER SPORTS
Concussion risks are not unique to the NFL. Injury and risk are inherit in contact sports.
Thus, many sports leagues have developed concussion prevention and awareness policies.
Boxing, college, sports, hockey, and rugby provide several examples of regulations.
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The World Boxing Council’s Rules and Regulations bars boxers from participating in
sparring sessions for 45 days and no less than 30 days after concussive trauma. Additionally,
concussed boxers are prohibited from competing in a boxing match until 75 days have passed
from a concussion. Furthermore, the WBC expands concussive trauma from any act, whether the
concussion occurred by knockout (KO) or another event.230
In addition, the National Collegiate Athletic Association (NCAA) has created various
measures to aid its member colleges in concussion awareness, prevention, and management. First,
the NCAA, in a partnership with the Centers for Disease Control and Prevention, supplies each
member college with posters and fact sheets about concussions. Secondly, the “NCAA Sports
Medicine Handbook – Guideline on Concussions in Athlete” provides recommendations to
colleges about forming practices to prevent and handle head injuries. Further, the NCAA
requires each member college to issue a “Concussion Management Plan.”231
Although the National Hockey League (NHL) is often criticized for violence, since 1997,
the NHL has mandated baseline neuropsychological testing.232
In addition to further tests for
players suspected of sustaining a concussion, the teams must notify the league of all concussions
and an informal “seven-day rule” exists, where players with serious concussions must sit out at
least one week.233
* However, NHL teams have begun to understand the importance of sitting out
concussed players, and have adopted informal team policies. For example, the Pittsburgh
Penguins’ star Sidney Crosby sustained a concussion on January 5, 2011, but did not return to
play until the following season on November 21, 2011.234
Finally, the International Rugby Board issues strict concussion policies. Rugby players
must sit out three weeks after sustaining a concussion. However, they may receive medical
approval for an earlier return.235
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V. SOLUTIONS FOR THE FUTURE
As discussed above, the NFL has begun to acknowledge the long-term effects of multiple
concussions. More importantly, however, the NFL has implemented policies to treat concussions
and dangerous plays more seriously. Beginning in 2010, the NFL assessed fines for helmet-to-
helmet collisions,236
and currently suspends players for these vicious hits.237
Additionally, the
NFL has taken steps to remove helmet-to-helmet hits from its website and other media.238
Further, as of 2012, the NFL places kickoffs at the opposing 35 yard-line instead of the 30 yard-
line, yielding more touchbacks and less kick returns. As a result, the new rule reduced
concussions during kickoffs by forty percent (40%) from the year before.239
However, the
“National Impact Database” for helmet ratings has been available since May 2011, discussed in
section III(B)(1). Because of this independent study, until the NFL mandates the use of the most
effective helmets for concussion prevention, the NFL fails to properly protect its current players.
This may lead to a prospective wave of future litigation.
Additionally, a fact often overlooked is that football injuries affect considerably more
non-professional players, such as high-school athletes, than NFL players. State legislatures have
enacted in thirty-five states, and pending in thirteen states, legislation that would help prevent
concussions in youth athletes.240
Thus, in all but two states, concussion awareness is recognized
as fundamentally important.241
For example, New Jersey requires the department of education to
implement athletic head injury safety training to school coaches and trainers, provide educational
fact sheets, and form written school district policies.242
In addition, players suspected of head
injuries are not permitted to return to play until an independent physician diagnoses and clears
the athlete to return to the field.243
Chaise 35
As forty-eight states have shown, legislation could assist in concussion prevention and
treatment. Although Congress is reluctant to involve itself in professional sports, it has
interjected its authority when an extensive public policy issue arises, such as enacting the
Anabolic Steroid Control Act of 2004.244
Thus, in addition to the 2009 Congressional hearing on
concussions, congressional members have proposed the Concussion Treatment and Care Tools
Act of 2010245
and the Protecting Student Athletes from Concussions Act of 2011.246
Neither of
these bills succeeded nor explicitly referred to the NFL. However, pursuant to Congress’
interstate commerce power, a federal law providing concussion prevention procedures for
professional football should be successfully upheld if enacted.
Ultimately, athletes’, fans’, and the media’s perception of the gravity involved in
concussions’ effects limits any policy proposed by the NFL, youth football leagues, state
legislatures, or congressional policies. Recently, the NFL encountered a “bounty” program,
possibly the greatest sports scandal since baseball’s steroid era.247
After an investigation, the
NFL revealed that the New Orleans Saints’ players and coaching staff organized a “bounty”
program initiated in 2009, which allegedly distributed up to $50,000 for hits that would knockout
certain opposing players from games.248
The NFL upheld its punishments, including an indefinite
ban against the former defensive coordinator, a one-season suspension against the current Saints’
head coach, an eight-game ban against the Saints’ general manager, and a six-game ban against
another assistant coach, as well as, a $500,000 fine and revocation of second-round draft picks
against the team.249
The NFL is still investigating the 22 to 27 players involved, who not only
complied, but also “embraced” the bounty system.250
However, the most disturbing aspect of the
scandal may be that as over one thousand former players seek compensation for their long-term
suffering, modern day players seem to ignore their predecessors’ plight.
Chaise 36
VI. CONCLUSION
As the long-term effects of playing football continue to confront the American public’s
attention, and litigation swells in the District Courts, the players’ hopes for compensation remain
uncertain. The retirees’ claims must not only trump federal labor law, but also must prove that a
tangible causation existed between the NFL’s breach of duty and their long-term injuries. Both
“Bountygate” and quotes from former and current players portray that the players’ attitudes
toward long-term injury remain unaffected. Notwithstanding the available information on
concussions, players seem to understand and accept the risks involved in playing football. Thus,
reliance upon the MBTI Committee will be difficult to prove.
However, if the retired players manage to win at trial, or at least overcome section 301,
the NFL might cease to exist. The NFL realizes revenue of approximately $10 billion per year.251
However, no entity is too big to fail. Although there are currently over 1,500 retiree-plaintiffs,
ten-thousand former NFL players exist.252
If every former player, including those not involved in
the current litigation, receives $1 million, then that would total the NFL’s one-year revenue.
However, if a jury were to return a judgment for the retirees, it would presumably be much
greater than merely $1 million per plaintiff. Additionally, if concussion prevalence does not
subside, insurance carriers may begin to charge monstrous premiums, or refuse to carry NFL
Clubs completely. For example, ten-percent of NHL players experience concussions, prompting
insurance carriers to closely monitor the industry.253
In addition to the NFL experiencing economic loss, football may also find itself as a
public villain. As former ravaged players file tort claims, their young fans may share their
horrific fate. Ninety-thousand (90,000) concussions occur in precollegiate football players per
year.254
In 2009, Boston University’s Center for the Study of Traumatic Encephalopathy
Chaise 37
discovered CTE in an 18-year-old high school football player who suffered multiple
concussions.255
The post-mortem examination of the 18 year-old’s brain revealed the earliest
evidence of CTE ever recorded.256
Thus, liability suits could arise against high schools and
colleges, as well. As a result, high schools and colleges may abolish their football programs to
avoid liability. This could lead to fewer premier athletes entering the NFL, as well as, a gradual
decline in league talent.
Finally, as studies continue to link CTE to head injuries suffered from football, the public
may lobby for football’s abolition. Similar to boxing, the American Medical Association may
momentarily demand for a ban on football. Further, it may only be a matter of time before
legislatures change their tone from preventing concussions to eliminating football entirely. Thus,
although the retired players may not succeed in their causes of action, they have brought the
dangers of football into the public’s attention. Therefore, either through litigation or legislation,
the NFL should strap on its helmet because it may shortly be knocked-out.
1 Marie-France Wilson, Young Athletes At Risk: Preventing and Managing Consequences of
Sports Concussions in Young Athletes and the Related Legal Issues, 21 MARQ. SPORTS L. REV.
241, 243 (2011) (citing Scott D. Bender et al., Historical Perspectives, TRAUMATIC BRAIN
INJURY IN SPORTS: AN INTERNATIONAL NEUROPSYCHOLOGICAL PERSPECTIVE 3, 7 (Mark R.
Lovell et al., eds., 2004)). 2 Wilson, Young Athletes at Risk, 243 (citing Paul McCrory et al., Consensus Statement on
Concussion in Sport 3rd
International Conference on Concussion in Sport Held in Zurich,
November 2008, 19 CLIN. J. SPORTS MED. 185 (2009)). 3 Wilson, Young Athletes At Risk, 243-44 (citing Rimma Danov, Pediatric Head Injuries,
FOUNDATIONS OF SPORT-RELATED BRAIN INJURIES 291, 298-99 (Semyon Slobounov & Wayne J.
Sebastianelli eds., 2006). 4 Wilson, Young Athletes At Risk, at 244 (citing McCrory, at 186).
5 Wilson, Young Athletes At Risk, at 244 (citing Bender, at 11).
6 Wilson, Young Athletes At Risk, at 244 (citing GARY S. SOLOMON ET AL., THE HEADS-UP ON
SPORT CONCUSSION 16 (2006). 7 Wilson, Young Athletes At Risk, at 245 (citing Ann C McKee et al., Chronic Traumatic
Encephalopathy in Athletes: Progressive Tauopathy After Repetitive Head Injury, 68 J.
NEUROPATHOLOGY & EXPERIMENTAL NEUROLOGY 709, 709-10 (2009)).
Chaise 38
8 Wilson, Young Athletes At Risk, at 245 (citing McKee, Chronic Traumatic Encephalopathy in
Athletes, at 710). 9 Wilson, Young Athletes At Risk, at 245, note 27 (citing Solomon, The Heads-Up on Spot
Concussion, at 101). 10
JEFFREY T. SAMMONS, BEYOND THE RING: THE ROLE OF BOXING IN AMERICAN SOCIETY 247-
48 (1990); Harrison S. Martland, Punch Drunk, 91(15) J. AM. MED. ASSOC. 1103-1107 (1928). 11
Sammons, BEYOND THE RING, at 248 (citing J. A. N. Corsellis, C. J. Bruton, and Dorothy
Freeman-Browne, The Aftermath of Boxing, 3 PSYCHOLOGICAL MEDICINE 270-303 (1973)). 12
Sammons, BEYOND THE RING, at 248. 13
Id. 14
Id. 15
Id.; Brief History of CT - Imaginis Corp., http://www.imaginis.com/ct-scan/brief-history-of-ct,
(last visited Apr. 24, 2012). Although the CT scan and MRI were invented in 1972 and 1977
respectively, they were not widely used or available until at least 1980. 16
Id. at 248-49 (citing J. A. Corsellis, C. J. Bruton and D. Freeman-Browne, The Aftermath of
Boxing, 3 PSYCHOLOGICAL MEDICINE, 270-303 (1973)). 17
Doctor Says Ali’s Brain Injuries Due to Boxing, ASSOCIATED PRESS, July 16, 1987, available
at http://articles.latimes.com/1987-07-16/sports/sp-4337_1_muhammad-ali (last visited Apr. 25,
2012) 18
Sammons, BEYOND THE RING, at 249 (citing Corsellis, The Aftermath of Boxing, at 270-303).
The study found that the boxers had greater degenerative and damaged nerve cells than non-
boxers. Additionally, three-fourths of boxers had openings in their membranous partition, or
septum, as opposed to only 0.3% in non-boxers. 19
Sammons, BEYOND THE RING, at 249 (citing George D. Lundberg, Boxing Should Be Banned
in Civilized Countries, 249(2) J. AM. MED. ASSOC. 250 (1983). 20
Am. Acad. Of Neurology, Practice Parameter Management of Concussion in Sports, 48
NEUROLOGY 581, 582 (1997). 21
Id. 22
Id. 23
Id. 24
Kristina M. Gerardi, Tackles that Rattle the Brain, 18 SPORTS LAW J. 181, 196 (2011) (citing
Stephanie Cajigal, Heads Clash on Management of Football Concussions, NEUROLOGY TODAY,
Apr. 17, 2007); International Conference on Concussion in Sport. 25
Gerardi, Tackles that Rattle, at 199 (citing Cajigal, Heads Clash); Johnette Howard, Chris
Henry Data Sound Football Alarm: Is it Possible That Football is as Dangerous to the Brain as
Boxing? The Results Say Yes, ESPN.COM, June 29, 2010,
http://sports.espn.go.com/espn/commentary/news/story?page=hoiward/100629 (last visited Apr.
24, 2012). 26
Gerardi, Tackles that Rattle, at 199 (citing Cajigal, Heads Clash); Greg Garber, A Tormented
Soul, ESPN.COM, January 24, 2005, http://sports.espn.go.com/nfl/news/story?id=1972285. 27
Gerardi, Tackles that Rattle, at 199 (citing Cajigal, Heads Clash); 28
Id. 29
Id. 30
Id. 31
Id.
Chaise 39
32
Howard, Chris Henry Data. 33
Id. 34
Gerardi, Tackles that Rattle, at 197 (citing David Williamson, New Study at UNC Shows
Concussions Promote Dementias in Retired Professional Football Players, UNC NEWS
SERVICES, Oct. 11, 2005, available at
http://scienceblog.com/community/older/2005/11/200510197.shtml (last visited Apr. 25, 2012). 35
Gerardi, Tackles that Rattle, at 197 (citing Williamson, New Study at UNC Shows Concussions
Promote Dementias). 36
Gerardi, Tackles that Rattle, at 197. 37
Id. 38
Id. 39
Id. 40
Id. 41
Id. at 198. 42
Id. at 198 (citing Cajigal, Heads Clash). 43
Gerardi, Tackles that Rattle, at 196 (citing Cajigal, Heads Clash). 44
Gerardi, Tackles that Rattle, at 195 (citing Cajigal, Heads Clash). 45
Health Committees – NFL Health and Safety,
http://nflhealthandsafety.com/commitment/committees/ (last visited Apr. 25, 2012) 46
Id. 47
Complaint, Allen v. NFL (E. D. Pa. 2012) (No. 2:12-cv-01281-AB). 48
Id. 49
Gerardi, Tackles that Rattle, at 204-205; Cajigal, Heads Clash; Alan Schwarz, N.F.L Data
Reinforces Dementia Links, N.Y. TIMES, Oct. 24, 2009, at D1, available at
http://www.nytimes.com/2009/10/24/sports/football/24dementia.html?_r=1&pagewanted=print
(last visited Apr. 25, 2012). 50
Gerardi, Tackles that Rattle, at 205 (citing Ex-NFL Players Report Higher Rates of Dementia,
3NEWS, Oct. 1, 2009, http://www.3news.co.nz/Ex-NFL-players-report-higher-rates-of-
dementia/tabid/755/articleID/123595/Default.aspx (last visited Apr. 25, 2012); Alan Schwarz,
Dementia Risk Seen in Players in N.F.L. Study, N.Y. TIMES, Sept. 30, 2009, at A1, available at
http://www.nytimes.com/2009/09/30/sports/football/30dementia.html?pagewanted=all (last
visited Apr. 25, 2012). 51
Gerardi, Tackles that Rattle, at 205 (citing Jamie Talan, NFL Conducts Its Own survey on
Dementia: Reports More Memory Problems in Retired Football Players, NEUROLOGY TODAY,
Dec. 17, 2009, at 13, 13, available at
http://journals.lww.com/neurotodayonline/Fulltext/2009/12170/NFL_Conducts_Its_Own_Survey
_on_Dementia__Reports.1.aspx (last visited Apr. 25, 2012) 52
Id. 53
Id. 54
Gerardi, Tackles that Rattle, at 205-06 (citing Ex-NFL Players). 55
Gerardi, Tackles that Rattle, at 205-06 (citing Schwarz, N.F.L. Data Reinforces Dementia
Links). 56
Gerardi, Tackles that Rattle, at 211-12 (citing Alexander C. Hart, NFL Head Injuries a Hot
Topic in Congress, L.A. TIMES, Oct. 29, 2009, http://articles.latimes.com/2009/oct/29/sports/sp-
football-congress29 (last visited Apr. 25, 2012).
Chaise 40
57
Gerardi, Tackles that Rattle, at 213-14 (citing Jim Mandelaro, Concussions Reach into All
Levels of Sports, Demo. & Chron., Dec. 27, 2009, http://www.rocnow.com/article/local-
news/2009912270359 (last visited Apr. 25, 2012). 58
Gerardi, Tackles that Rattle, at 213-14 (citing Schwarz, N.F.L Data Reinforces Dementia
Links) 59
Id. 60
Alan Schwarz, Concussion Committee Breaks with Predecessor, N.Y. TIMES, June 2, 2010, at
B12, available at http://www.nytimes.com/2010/06/02/sports/football/02concussion.html (last
visited Apr. 25, 2012). 61
Id. 62
Memo – NFL Concussion Guidelines, 2011, http://www.google.com/url?sa=t&rct=j&q=2011
sideline concussion nfl
memo&source=web&cd=2&ved=0CDkQFjAB&url=http%3A%2F%2Fnflhealthandsafety.files.
wordpress.com%2F2011%2F06%2Fnfl-hns-memo-
2011v2.pdf&ei=UNCXT5nwBIjx6QGht7THBg&usg=AFQjCNG1AusH3G0ceEn4r-
8uF1h9cRlrjQ (last visited Apr. 25, 2012). 63
NFLCONCUSSIONLITIGATION.COM, http://nflconcussionlitigation.com/ (last visited Apr. 24,
2012). 64
Complaint at ¶¶31-35, Easterling v. Nat’l Football League, Inc., (E.D. Pa. Oct. 5, 2011) (No.
ll-cv-05209-AB). 65
Fed. R. Civ. P. 23. 66
Fed R. Civ. P. 23(a). For certification, the plaintiffs must show Numerosity, Commonality,
Typicality, and Adequacy of Representation. Additionally class action must be maintainable. Fed.
R. Civ. P. 23(b)(3). See Complaint at ¶¶31-35, Easterling (No. ll-cv-05209-AB). 67
Fed. R. Civ. P. 20(a). See Complaint, Rypien v. Nat’l Football League (E.D. Pa. Mar. 23,
2012) (No. 2:12-cv-01496-AB). 68
E.g. Complaint, Lewis v. Nat’l Football League, (N.D. Ga. Dec. 21, 2011) (No. 11-CV-04451),
2011 WL 6442263. 69
29 U.S.C. § 185(a). 70
Stringer, 474 F. Supp. 2d at 899-900 (citing Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211
(1985)). 71
Stringer, 474 F. Supp. 2d at 900 (citing Franchise Tax Bd. V. Construction Laborers Vacation
Trust, 463 U.S. 1, 23 (1983)). 72
Stringer, 474 F. Supp. 2d at 900 (citing Allis-Chalmers, 471 U.S. at 217; Livadas v Bradshaw,
512 U.S. 107, 122-24 (1994); Smolarek v. Chrysler Corp. 879 F. 2d 1326, 1329 (6th Cir. 1989)). 73
Stringer, 474 F. Supp. 2d at 900. 74
Stringer, 474 F. Supp. 2d at 900 (citing DeCoe v. Gen’l Motors Corp., 32 F.3d 212, 216 (6th
Cir. 1994). 75
Id. (citing Terwilliger v. Greyhound Lines, Inc., 882 F. 2d 1033, 1037 (6th Cir. 1989), cert.
denied, 495 U.S. 946 (1990)). 76
Id. 77
Id. (citing DeCoe, 32 F. 2d at 216; Fox v. Parker Hannifin Corp. 914 F. 2d 795, 800 (6th Cir.
1990)). 78
Atwater, 626 F.3d at 1185 (citing Allied Chem. & Alkali Workers of Am., Local Union No. 1 v.
Pittsburgh Plate Glass Co., 404 U.S. 157, 171 n. 11 (1971)).
Chaise 41
79
Retired players are also seeking relief against the National Football League Players
Association, contending that it insufficiently bargained for the retired players in the 2011 CBA.
Daniel Kaplan, Retirees Accuse NFLPA of Illegal Bargaining, 14 SPORTSBUSINESS DAILY 32,
February 27, 2012, available at
http://www.sportsbusinessdaily.com/Journal/Issues/2012/02/27.aspx (last visited Apr. 25, 2012). 80
United Steel Workers of Am., AFL-CIO-CLC v. Rawson, 495 U.S. 362 (1990). 81
United Steel Workers, 495 U.S. at 364. 82
United Steel Workers, 495 U.S. at 371 83
Memorandum of Law in Support of The National Football League’s Motion to Dismiss the
Amended Complaint, Easterling v. Nat’l Football League (E.D. Pa. 2011) (No. 11-CV-05209-
AB). 84
Stringer v. Nat’l Football League, 474 F. Supp. 2d 894, 898 (S.D. Ohio 2007). 85
Id. 86
Id. 87
Id. at 911 88
Id. at 907 89
Id. at 909 90
Id. at 910 (citing CBA, Art. XLIV § 2) 91
Stringer, 474 F. Supp. 2d at 910-911 (citing CBA, Art. XLIV, § 1). 92
Stringer, 474 F. Supp. 2d at 911 93
Sherwin v. Indianapolis Colts, Inc., 752 F. Supp. 1172 (N.D.N.Y. 1990). 94
Id. at 1174 95
Id. 96
Id. 97
Id. at 1174 (citing Nolde Bros., Inc. v. Local No. 358, Bakery & Confectionary Workers Union,
430 U.S. 243, 252-254 (1977) (holding that when parties continue to abide by expired collective
bargaining agreement’s arbitration terms, the duty to arbitrate continues despite the agreement’s
expiration)). 98
Sherwin, 752 F. Supp. at 1174 (citing CBA, ¶9). 99
Sherwin, 752 F. Supp. at 1174 (citing CBA, Art. XXXI, §1). 100
Sherwin, 752 F. Supp. at 1179. 101
Givens v. Tennessee Football, Inc., 684 F. Supp. 2d 985, 988 (M.D. Tenn. 2010). 102
Id. at 991. 103
Stringer, 474 F. Supp. 2d at 915. 104
Id. at 899. 105
Id. at 912. 106
Id. 107
Brown v. Nat’l Football League, 219 F. Supp. 2d 372, 379-82 (S.D.N.Y 2002). 108
Id. at 382. 109
Hendy v. Losse, 1991 U.S. App. LEXIS 2141 (9th Cir. 1991). 110
Hendy, 1991 U.S. App. LEXIS 2141, *5 111
Id. 112
Id at *7 (citing CBA, Art. XXXI, XXXII) 113
Id. at *7-8 114
Id. at *6
Chaise 42
115
Jennifer Ann Heiner, Comment, Concussions in the National Football League: Jani v. Bert
bell/Pete Rozelle NFL Player Ret. Plan and a Legal Analysis of the NFL’s 2007 Concussion
Management Guidelines 21 SETON HALL J. SPORTS & ENT. L. 467, 475 (2008) (citing Local 174,
Teamsters, Chauffeurs, Warehousemen & Helpers of Am. v. Lucas Flour Co., 369 U.S. 95, 104-
05 (1962)). 116
Heiner, Concussion in the National Football League, at 475 (citing 29 U.S.C. 173(d) (2006)). 117
Id. 118
Motion to Dismiss at 12, Easterling, (No. 11-CV-05209-AB) (citing CBA Art. IX § 1; 2006
CBA Art. IX § 1, see also 1977 CBA Art. VII § 1; 1982 CBA Art. VII § 1). 119
Motion to Dismiss at 8, Easterling, (No. 11-CV-05209-AB) (citing 1969 NFL and American
Football League Constitution and Bylaws Art. XIX § 19.5). 120
Motion to Dismiss at 8, Easterling, (No. ll-cv-05209-AB) (citing 1980 Supp. to NFL
Constitution and Bylaws Art. XVII). 121
Motion to Dismiss at 8, Easterling (No. ll-cv-05209-AB) (citing 1993 CBA Appx. C § 9;
2006 CBA Appx. C § 9). 122
Motion to Dismiss at 8, Easterling (No. ll-cv-05209-AB) (citing 1982 CBA Art. XXXI § 1;
1993 CBA Art. XLIV § 1; 2006 CBA Art. XLIV § 1). 123
Motion to Dismiss at 20, Easterling, (No. ll-cv-05209-AB) (citing 1982 CBA Art. XXXI §
2; 1993 CBA Art. XLIV § 2; 2006 CBA Art. XLIV § 2). 124
Motion to Dismiss at 21, Easterling, (No. ll-cv-05209-AB) (citing 1982 CBA Art. XXXI §
3; 1993 CBA Art. XLIV § 3; 2006 CBA Art. XLIV § 3). 125
Motion to Dismiss at 10, Easterling, (No. ll-cv-05209-AB) (citing 1982 CBA Art. XI; 1993
Art. XII § 1(a); 2006 CBA Art. XIII § 1(a); see also 1970 CBA Art. V; 1977 CBA Art. XI). 126
Motion to Dismiss at 10, Easterling, (No. ll-cv-05209-AB) (citing 1977 CBA Art. XI § 8). 127
Motion to Dismiss at 10, Easterling, (No. ll-cv-05209-AB) (citing 1982 CBA Art. XI § 9;
1993 CBA Art. XIII § 1(c); 2006 CBA Art. XIII § 1(c)). 128
Motion to Dismiss at 10, Easterling, (No. ll-cv-05209-AB) (citing 1970 CBA Art. XI; 1977
CBA Art. IX; 1982 CBA Art. IX; 1993 CBA Art. X; 2006 CBA Art. X). 129
Motion to Dismiss at 10, Easterling, (No. ll-cv-05209-AB) (citing 1970 CBA Art. IV § 12;
1977 CBA Art. XXXII; 1982 CBA Art. XXXV; 1993 CBA Art. XXIII; 2006 CBA Art. XXIII). 130
Motion to Dismiss at 11, Easterling, (No. ll-cv-05209-AB) (citing 1970 CBA Art. XV § 7;
1977 CBA Art. XXXIII; 1982 CBA Art. XXXVI; 1993 CBA Art. LIV; 2006 CBA Art. LIV). 131
Motion to Dismiss at 11, Easterling, (No. ll-cv-05209-AB) (citing 1982 CBA Art. XXIV;
1993 CBA Art. L; 2006 CBA Art. L.). 132
Motion to Dismiss at 11, Easterling, (No. ll-cv-05209-AB) (citing 1993 CBA Art. LI; 2006
CBA Art. LI). 133
Motion to Dismiss at 11, Easterling, (No. ll-cv-05209-AB) (citing 1993 CBA Art. LII;
2006 CBA Art. LII). 134
Motion to Dismiss at 11, Easterling, (No. ll-cv-05209-AB) (citing 1977 CBA Art. X; 1982
CBA Art. X; 1993 CBA Art. XII § 1; 2006 CBA Art. XII § 1). 135
Motion to Dismiss at 11, Easterling, (No. ll-cv-05209-AB) (citing 2006 CBA Art. XLVIII-
D). 136
Complaint at ¶¶306-307, Richards, (No. 12-cv-01623-AB).
Chaise 43
137
Zack Needles, NFL Concussion Suits Consolidated in Eastern District, THE LEGAL
INTELLIGENCER, February 1, 2012, available at
http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202540814651 (last visited Apr. 25, 2012). 138
Id.; See In re: Nat’l Football League Players’ Concussion Injury Litigation (Jan. 31, 2012)
(Case MDL No. 2323). 139
Atwater v. Nat’l Football League, 626 F.3d 1170, 1179 (11th Cir. 2010) (citing Dixie Grp.,
Inc. v. Shaw Indus. Grp., Inc., 303 Ga. App. 459 (Ga. Ct. App. 2010) (quoting Bradley Ctr., Inc.
v. Wessner, 250 Ga. 199 (Ga. 1982). 140
Complaint at ¶¶52-3, Allen, (No. 2:12-cv-01281-AB). 141
Complaint at ¶¶66-7, Allen, (No. 2:12-cv-01281-AB). 142
Motion to Dismiss at 12, Easterling, (No. ll-cv-05209-AB) (citing 1970 CBA Art. X). 143
Motion to Dismiss at 12, Easterling, (No. ll-cv-05209-AB) (citing 1977 CBA Art. VII § 1;
1982 CBA Art. VII § 1; 1993 CBA Art. IX § 1; 2006 CBA Art. IX § 1). 144
See § III(A)(4); Motion to Dismiss at 7-9, Easterling, (No. ll-cv-05209-AB). 145
See Endnote 95. 146
See Endnote 15; Brief History of CT - Imaginis Corp., http://www.imaginis.com/ct-
scan/brief-history-of-ct (last visited Apr. 24, 2012). 147
Scott Brown, Steelers Safety Polamalu Knows Concussions, PITT. TRIB.-REV., Nov. 30, 2011,
http://www.pittsburghlive.com/x/pittsburghtrib/sports/steelers/s_769646.html (last visited Apr.
24, 2012). 148
See Hackbart v. Cincinnati Bengals, Inc., 601 F.2d. 516 (10th Cir. 1979) (holding tort claim
arising from hit on the back of plaintiff’s head while laying on the field was actionable despite
taking place during sporting event); see also Jeffrey A. Citron and Mark Abelman, Civil Liability
in the Arena of Professional Sports, 36 U.B.C. L. Rev. 193 (2003). 149
Full NFL Statement into ‘Bounty’ Program Run by New Orleans Saints, THE TIMES-
PICAYUNE, March 2, 2012,
http://www.nola.com/saints/index.ssf/2012/03/full_nfl_statement_into_bounty.html (last visited
Apr. 25, 2012) 150
Mike Tanier, In ’89, Idea of Bounties Seemed Funny to Many, N.Y. TIMES, Apr. 11, 2012, at
B11, available at http://www.nytimes.com/2012/04/12/sports/football/when-the-nfls-culture-of-
violence-seemed-funny.html (last visited Apr. 24, 2012). 151
The Associated Press, Ray Easterling, Of Atlanta’s Grits Blitz, Dies at 62, N.Y. TIMES, Apr.
22, 2012, at A22, available at http://www.nytimes.com/2012/04/22/sports/football/ray-easterling-
of-atlantas-grits-blitz-dies-at-62.html?_r=1 (last visited Apr. 24, 2012). 152
See § II(C) 153
Jani v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan, 209 Fed. Appx. 305, 308 (4th
Cir. 2006). 154
Id. at 312. 155
Id. at 317. 156
Id. 157
NFL, Manufacturers: No Helmet Can Fully Eliminate Concussions, ASSOCIATED PRESS, Nov.
12, 2010, http://www.nfl.com/news/story/09000d5d81c0f5d5/article/nfl-manufacturers-no-
helmet-can-fully-eliminate-concussions (last visited Apr. 25, 2012). 158
Id.
Chaise 44
159
Virginia Tech-Wake Forest University School of Biomedical Engineering and Sciences –
National Impact Database, http://www.sbes.vt.edu/nid.php (last visited Apr. 25, 2012). 160
Gregg Easterbrook, Virginia Tech Helmet Research Crucial, ESPN.COM, July 19, 2011.
http://sports.espn.go.com/espn/page2/story?page=easterbrook-
110719_virginia_tech_helmet_study&sportCat=nfl (last visited Apr. 25, 2012). 161
Easterbrook, Virginia Tech Helmet Research (citing Examining Concussion Rates and Return
to Play in High School Football Players Wearing Newer Helmet, 58 NEUROSURGERY 275-286
(2006)). 162
Atwater, 626 F.3d at 1182 (citing Futch v. Lowndes Cnty., 297 Ga. App. 308, 312 (Ga. Ct.
App. 2009); Hardaway Co. v. Parsons, Brinckerhoff, Quade & Douglas, Inc., 297 Ga. 424, 479
(Ga. 1997)). 163
Id. 164
Complaint at ¶¶266, 269, Allen, (No. 2:12-cv-01281-AB). 165
Complaint at ¶272, Allen, (No. 2:12-cv-01281-AB). 166
Gregg Easterbrook, Concussions Are the Most Significant Problem Facing the Sport of
Football, ESPN.com, Sept. 21, 2010,
http://sports.espn.go.com/espn/page2/story?page=easterbrook/100921_tuesday_morning_quarter
back&sportCat=nfl (last visited Apr. 25, 2012). Easterbrook is a writer and brother of Frank
Easterbrook, Chief Judge of the Seventh Circuit. During the football season, Easterbrook writes a
weekly column for ESPN.com. He has been at the forefront of concussion awareness and
prevention, and devotes many articles to the issue. 167
Id. Smith, who also suffered a Grade III concussion on the play, was fined and suspended for
one game. 168
Id. Tirico did mention that the play almost caused Cardinals quarterback Kurt Warner, who
threw the pass to Boldin, to retire because he was frightened. 169
Id. 170
Chris McCosky, Lions Center Dominic Raiola: Football-Related Memory Loss ‘Totally
Worth It,’ THE DETROIT NEWS, April 17, 2012,
http://www.detroitnews.com/article/20120417/SPORTS0101/204170401/Lions-center-Dominic-
Raiola-football-related-memory-loss-totally-worth-
http://thebiglead.com/index.php/2012/04/16/breaking-down-the-nfl-head-injury-litigation-
situation/ (last visited Apr. 24, 2012). 171
Id. 172
Jurevicius v. Cleveland Browns Football Company, LLC, 2010 U.S. Dist. LEXIS 144096, at
*38-39 (N.D. Ohio 2010) (citing Cohen v. Lamko, Inc., 10 Ohio St. 3d 167 (Ohio 1984)). 173
Jurevicius, 2010 U.S. Dist. LEXIS 144096, at *3. 174
Jurevicius, 2010 U.S. Dist. LEXIS 144096, at *4. 175
Jurevicius, 2010 U.S. Dist. LEXIS 144096, at *35, 38-9. 176
Jurevicius, 2010 U.S. Dist. LEXIS 144096, at *39 (citing Cohen v. Estate of Cohen, 23 Ohio
St. 3d 90 (Ohio 1986); L & N Partnership v. Lakeside forest Assn., 183 Ohio App. 3d 125 (Ohio
App. Dist. Ct. 2009)). 177
Jurevicius, 2010 U.S. Dist. LEXIS 144096, at *40. 178
Complaint at ¶288, Richards, (No. 12-cv-01623-AB).
Chaise 45
179
John Culhane, Concussions and Cigarettes, SLATE, July 26, 2011,
http://www.slate.com/articles/sports/sports_nut/2011/07/concussions_and_cigarettes.html (last
visited Apr. 25, 2012) 180
See III(A)(4); Motion to Dismiss at 8, Easterling (No. ll-cv-05209-AB) (citing 1982 CBA
Art. XXXI § 3; 1993 CBA Art. XLIV § 3; 2006 CBA Art. XLIV § 3). 181
Motion to Dismiss at 31-32, Easterling, (No. ll-cv-05209-AB) (citing Gaines v. Krawczyk,
354 F. Supp. 2d 573, 585 (W.D. Pa. 2004); Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc.,
404 F.3d 566, 582 (2d Cir. 2005); 37 C.J.S. Fraud § 29 (2011)). 182
Complaint at ¶254, Allen, (No. 2:12-cv-01281-AB). 183
Complaint at ¶255, Allen, (No. 2:12-cv-01281-AB). 184
Complaint at ¶256, Allen, (No. 2:12-cv-01281-AB). 185
Motion to Dismiss at 35, Easterling, (No. ll-cv-05209-AB) (citing Grose v. Procter &
Gamble Paper Prods., 866 A.2d 437, 440 (Pa. Super. Ct. 2005); Kottler v. Deutsche bank AG,
607 F. Supp. 2d 447, 463 (S.D.N.Y. 2009); see also 15A C.J.S. Conspiracy § 9 (2011)). 186
Motion to Dismiss at 35, Easterling, (No. ll-cv-05209-AB) (citing Thompson v. Ross, No.
10-CV-479, 2010 WL 3896533, at *7 (W.D. Pa. Sept. 30, 2010); Medtech Prods. Inc. v. Ranir,
LLC, 596 F. Supp. 2d 778, 794-95 (S.D.N.Y. 2008)). 187
Motion to Dismiss at 36, Easterling, (No. ll-cv-05209-AB) (citing Grose, 866 A.2d at 440,
441; Wegman v. Dairylea Co-op., Inc., 50 A.D.2d 108, 114 (N.Y. App. Div. 1975); 15A C.J.S.
Conspiracy § 15 (2011); But see Zefarana v. Pfizer, Inc., 724 F. Supp. 2d 545, 559 (E.D. Pa.
2010); Operative Plasterers’ & Cement Masons’ Int’l Ass’n v. Metro. N.Y. Dry Wall Contractors
Ass’n, Inc., 543 F. Supp. 301, 313 (D.C.N.Y. 1982)). 188
Motion to Dismiss at 37, Easterling, (No. ll-cv-05209-AB) (citing 16 Am. Jur. 2D
Conspiracy § 64 (2011); McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa. Super. Ct.
2000); Altman v. Fortune Brands, Inc., 268 A.D. 2d 231, 232 (N.Y. App. Div. 2000)). 189
Complaint at ¶236, Allen, (No. 2:12-cv-01281-AB). 190
Complaint at ¶237, Allen, (No. 2:12-cv-01281-AB). 191
Complaint at ¶276, Richards, (No. 12-cv-01623-AB). 192
Complaint at ¶277, Richards, (No. 12-cv-01623-AB). 193
Complaint at ¶238-9, Allen, (No. 2:12-cv-01281-AB). 194
Motion to Dismiss at 36, Easterling, (No. ll-cv-05209-AB). 195
Complaint, Guyton v. NFL, (Fulton County Ct., Ga. April 16, 2012). This Complaint was also
the first to allude to the Saints’ “Bountygate.” 196
Paul Anderson, “Kill The Head and the Body Will Die,” NFLCONCUSSIONLITIGATION.COM,
http://nflconcussionlitigation.com/?p=482 (last visited Apr. 25, 2012). In general, Anderson
presents a great blog with periodic updates on the litigation. 197
Complaint at ¶¶111-118, Guyton, 198
Hendy, 1991 U.S. App. LEXIS 2141, *4 (citing United States Liab. Ins. Co. v. Haidinger-
hayes, Inc., 1 Cal. 3d 586 (Cal. 1970)) 199
Id. (citing Atlas Assurance Co. v. McCombs Corp., 146 Cal. App. 3d 135 (Cal. App. Ct.
1983); Elam v. College Park Hosp., 132 Cal. App. 3d 332 (Cal. App. Ct. 1982)) 200
Hendy, 1991 U.S. App. LEXIS 2141, *4, 5. 201
Ira Casson, MD – Neurologist – US News Top Doctors, http://health.usnews.com/top-
doctors/ira-casson-neurologist-81CC000832 (last visited Apr. 25, 2012); Mount Sinai School of
Medicine - Elliot Pellman, http://www.mssm.edu/profiles/elliot-pellman (last visited Apr. 25,
Chaise 46
2012); World Congress on Neck Pain, Speaker Biography: David C. Viano PhD, MD.
http://www.neckpaincongress.org/nav.cfm?page=ps_speakerbio&menu=3&submenu=2&ID=90
(last visited Apr. 25, 2012) 202
Biography - Elliot Pellman – Mount Sinai School of Medicine,
http://www.mssm.edu/profiles/elliot-pellman (last visited Apr. 25, 2012) 203
World Congress on Neck Pain, Speaker Biography - David C. Viano PhD, MD,
http://www.neckpaincongress.org/nav.cfm?page=ps_speakerbio&menu=3&submenu=2&ID=90
(last visited Apr. 25, 2012) 204
See § II(C). 205
Peter Keating, Doctor Yes: Elliot Pellman, The NFL’s Top Medical Adviser, Claims It’s Okay
for Players with Concussions to Get Back in the Game. Time for a Second Opinion, ESPN THE
MAGAZINE, Oct. 28, 2006, available at http://sports.espn.go.com/nfl/news/story?id=2636795
(last visited Apr. 25, 2012). 206
Id. 207
Id. 208
Id. 209
Id. 210
William C. Rhoden, Two Ex-Jets Have Moved On, But Concussion Effects Linger, N.Y.
TIMES, Nov. 21, 2011, at D5, available at
http://www.nytimes.com/2011/11/21/sports/football/concussion-effects-linger-for-two-ex-
jets.html?pagewanted=all (last visited Apr. 25, 2012). 211
Motion to Dismiss at 37-8, Easterling, (citing Caronia, 2011 WL 338425, at *7 (E.D.N.Y.
Jan. 13, 2011). 212
Scott Aberson, Note: Fifty-State Survey of Medical Monitoring and the Approach the
Minnesota Supreme Court Should Take When Confronted with the Issue, 32 WM. MITCHELL L.
REV. 1114-1115 (2006). 213
Complaint at ¶132, Wooden v. Nat’l Football League (S.D. Fla. Jan. 24, 2012) (No. 1:12-cv-
20269-JEM) 214
Id. at ¶135 215
Motion to Dismiss at 38, Easterling, 216
Id. (citing Remson v. Verizon… 217
Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 405 (Ca. 1974). 218
Johnson v. Anheuser Busch, Inc., 876 F. 2d 620, 625 (8th Cir. 1979). 219
Id. 220
Complaint at ¶318, Richards v. NFL, et al (E.D. Pa. April 2, 2012) (No. 12-cv-01623-AB). 221
Id. at ¶318(b). 222
Public Affairs Assocs., Inc. v. Rickover, 369 U.S. 111 (1962). 223
28 U.S.C. § 2201(a) (2012). 224
Id. 225
Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426 (1948). 226
PSC v. Wycoff Co., 344 U.S. 237 (1952). 227
Farm Family Mut. Ins. Co. v. Blevins, 572 F. Supp. 397, 401 (D. Del. 1983). 228
Complaint at ¶ 263(a), Richards, (No. 12-cv-01623-AB) 229
Complaint at ¶¶263(b), (c), (d), Richards, (No. 12-cv-01623-AB)
Chaise 47
230
Complaint at ¶225, Allen, (No. 2:12-cv-01281-AB); World Boxing Council Rules and
Regulations (Rule 4.2.14) 231
Complaint at ¶229, Allen, (No. 2:12-cv-01281-AB) (citing NCAA –Concussion Management
Plan,
http://www.ncaa.org/wps/portal/ncaahome?WCM_GLOBAL_CONTEXT=/ncaa/NCAA/Acade
mics+and+Athletes/Personal+Welfare/Health+and+Safety/Concussion (last visited Apr. 25,
2012)). 232
Keating, Doctor Yes. 233
Id. 234
Matt Brooks, Sidney Crosby to Return for Penguins Against Islanders, THE WASHINGTON
POST, Nov. 21, 2011, http://www.washingtonpost.com/blogs/early-lead/post/sidney-crosby-to-
return-for-penguins-against-islanders/2011/11/21/gIQAUNPdiN_blog.html (last visited Apr. 25,
2012). 235
Keating, Doctor Yes. 236
Judy Battista, N.F.L. Fines Players for Hits to Head, N.Y. TIMES, Oct. 19, 2010, at B15,
available at http://www.nytimes.com/2010/10/20/sports/football/20hits.html (last visited Apr. 25,
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James Harrison Suspended 1 Game, ESPN.COM, Dec. 14, 2011,
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cleveland-browns-colt-mccoy (last visited Apr. 25, 2012) 238
Katie Thomas, N.F.L.’s Policy on Helmet-to-Helmet Hits Makes Highlights Distasteful, N.Y.
TIMES, October 21, 2010, at B11, available at
http://www.nytimes.com/2010/10/22/sports/football/22hits.html (last visited Apr. 25, 2012). 239
Associated Press. NFL: Concussions Down on Kickoffs, ESPN.COM, March 26, 2012,
http://espn.go.com/nfl/story/_/id/7740025/rich-mckay-says-nfl-kickoff-tweak-reduced-
concussions (last visited Apr. 25, 2012). 240
Traumatic Brain Injury Legislation - National Conference of State Legislatures,
http://www.ncsl.org/issues-research/health/traumatic-brain-injury-legislation.aspx (last visited
Apr. 25, 2012). 241
Id. 242
N.J. STAT. ANN. § 18A:40-41.3 (West 2010). 243
Id. 244
Anabolic Steroid Control Act, 21 U.S.C. §§802-11 (2007). 245
Concussion Treatment and Care Tools Act, H.R. 1347, 111th Cong. (2010). 246
Protecting Student Athletes from Concussions Act, H.R. 469, 112th Cong. (2011). 247
Full NFL Statement into ‘Bounty’ Program Run by New Orleans Saints, THE TIMES-
PICAYUNE, March 2, 2012,
http://www.nola.com/saints/index.ssf/2012/03/full_nfl_statement_into_bounty.html (last visited
Apr. 25, 2012). 248
Id. 249
NFL Bans Saints’ Payton a Year for ‘Bounties’; Williams Out, Too. NFL.COM, March 21,
2012, http://www.nfl.com/news/story/09000d5d827c0dd9/article/nfl-suspends-saints-coach-
payton-for-one-year-without-pay?module=HP11_breaking_news (last visited Apr. 25, 2012). 250
Report: Saints Players Not Off Hook, ESPN.COM, Apr. 24, 2012,
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Chaise 48
embraced-bounty-system-according-report (last visited Apr. 25, 2012) (quoting NFL
Commissioner Roger Goodell). 251
Tyler Cowen and Kevin Grier, What Would the End of Football Look Like: An Economic
Perspective on CTE and the Concussion Crisis, GRANTLAND, Feb. 9, 2012,
http://www.grantland.com/story/_/id/7559458/cte-concussion-crisis-economic-look-end-football
(last visited Apr. 25, 2012). 252
Gregg Doyel, Current NFL Stars Forgetting About Past Heroes is Disgraceful,
CBSSPORTS.COM, Sept. 15, 2011, http://www.cbssports.com/nfl/story/15584944/current-nfl-
stars-forgetting-about-past-heroes-is-disgraceful/rss (last visited Apr. 25, 2012). 253
NHL Concussions Put Player Insurance in Question, CBC SPORTS, Jan. 31, 2012,
http://www.cbc.ca/sports/hockey/nhl/story/2012/01/31/sp-insurance-nhl-concussions.html (last
visited Apr. 25 2012). 254
Cowen and Grier, What Would the End of Football Look Like. 255
18 Year Old High School Football Player – Center for the Study of Traumatic
Encephalopathy, http://www.bu.edu/cste/case-studies/18-year-old/ (last visited Apr. 25, 2012). 256
Id.
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